A recent BCSC decision awards a man $9,076,854.19 for a serious brain injury he sustained on Jan. 31, 2014. The accident occurred on the Coquihalla Highway, which is never a pleasant drive in Winter conditions. Mr Uy was only 39 years old at the time of the collision, leaving him with significant cognitive difficulties. The expert evidence also opined that Mr. Uy had “zero” capacity to live independently, which explains the high award for cost of future care in which $7,235,522.00 was awarded.
Total Award:
Non-Pecuniary Damages $388,177.00
Past Lost Earning Capacity $172,330.00
Future Lost Earning Capacity $820,000.00
(Total Lifestyle Approach) ($626,839.00)
Cost of Future Care $7,235,522.00
Special Damages*/In Trust $842,240.81
HCCR Claim $245,423.38
Tax Gross Up TBD
Management Fee TBD
Total: $9,076,854.19
Liability was denied in this case and a liability trial proceeded in June of 2019. Of interest, the case link for the liability trial is referenced as Uy v Dhillon, 2019 BCSC 1136 (CanLII). The crash occurred when a tractor‑trailer “encroached without warning into their lane of traffic, cutting them off and requiring Mr. Uy to take evasive actions that led to the loss of control and the collision.”
Without success at the liability trial, the Plaintiff in this case would not have benefitted from such a high award. Its important to pay close attention to the liability trial, and the key points that were raised by counsel that led to the success and finding that the Plaintiff was not to blame for this crash at all. The arguments by defence that the Plaintiff was contributory negligent failed.
Duty of care and standard of care:
Motor Vehicle Act, R.S.B.C. 1996, c. 316
Standard of Care for Commercial Vehicles
Wang v. Horrod, 1998 CanLII 5428 (B.C.C.A.)
MacEachern v. Rennie, 2010 BCSC 625 at 549
Rear End Accidents
Section 162(1) of the MVA
Ayers v. Singh, 1997 CanLII 3410 (B.C.C.A.)
Pryndik v. Manju, 2001 BCSC 502
Wright v. Mistry, 2017 BCSC 239
Varga v. Kondola, 2016 BCSC 2406
Wallman v. Doe, 2014 BCSC 79
Cue v. Breitkreuz, 2010 BCSC 617
Bingul v. Youngson, 2016 BCSC 1868
Changing Lanes and Overtaking Vehicles
Section 151(a) of the MVA
Section 159 of the MVA
Section 161(2) and (3) of the MVA
Brook v. Tod Estate, 2012 BCSC 1947
Ali v. Fineblit, 2015 BCSC 1494,
Lanes Obscured by Snow
Wellington v. Hopkins, 2000 BCSC 1072
“Drivers are still prohibited from moving out of their own path of travel and into another path of travel if it is unsafe to do so or if it will affect the travel of another vehicle.”
The defendants appealed this decision. The Court of Appeal however confirmed the lower court’s findings. The Court of Appeal reference is noted: (2020 BCCA 163).
This article will quote directly from the decision on the topic of cost of future care:
Cost of Future Care
[63] Consistent with the objective of providing Mr. Uy with proper and adequate care, it is appropriate to deal first with the assessment of Mr. Uy’s cost of future care claim. In doing so, it is useful to reiterate my findings, made above at para. 55, that Mr. Uy will require 24-hour care and supervision for the rest of his life and that Mr. Uy should remain in the home of Mr. and Mrs. Amurao for as long as that can reasonably be managed.
[64] I will return to the question of duration shortly but first will consider the cost of such 24-hour, seven day per week care. Ms. Szarkiewicz considered two different agencies for providing Mr. Uy with care. She recommends Nurse Next Door as the best option. It has care aides capable of providing Mr. Uy with companionship and assistance with all activities of daily living. In her opinion, the care aides employed by Nurse Next Door are better trained and provide a higher level of care than the other agency considered. Ms. Szarkiewicz estimated the annual cost for 24-hour care provided by Nurse Next Door to be $350,000.
[65] The defendants submit that a more reasonable cost estimate is in the range of $6,000 to $10,000 per month, or between $75,600 to $120,000 per year. However, the defendants have no evidence to support these figures.
[66] The defendants point to Mr. Amurao’s evidence that he previously was paid approximately $4,000 per month for a home care client. They submit that this figure should provide a benchmark for assessing Mr. Uy’s care costs.
[67] I do not agree. There was minimal evidence at best about the former client’s condition, about the care and services provided by Mr. Amurao and the details of the financial arrangement. There is no basis upon which the Court could use this as a means of assessing Mr. Uy’s future care costs, particularly in the face of the cost of care report prepared by Ms. Szarkiewicz.
[68] I therefore accept Ms. Szarkiewicz’s evidence on this point.
[69] The question then becomes how long Mr. Uy will require such care. Mr. Uy advances a claim based upon lifetime care in a residential setting, even beyond the expected lifespan of Mr. and Mrs. Amurao. This position is framed as follows in Mr. Uy’s written submission:
The plaintiff asks that funding for a private living arrangement continue beyond the Amurao’s anticipated life expectancies, with the hope and expectation that one of the Amurao children or perhaps even Mr. Uy’s daughter will agree to a living arrangement that will see as little disruption of [Mr. Uy’s] living environment as possible. There is still time for succession planning, but as Mrs. Amurao explained in her evidence, at present her children all have busy careers and young families of their own. But they remain hopeful that one of their children will want to continue to do what they have done for John.
[70] In support of this position, Mr. Uy points to the fact that he did not enjoy being at Laurel Place and has further not enjoyed programs or settings that place him with other disabled individuals. Mr. Uy further relies on Dr. Ganesan’s opinion that a change in Mr. Uy’s living arrangements would be a major challenge for him and may provoke significant emotional and psychological issues.
[71] This evidence supports Mr. Uy remaining in the Amurao’s home for as long as is reasonably possible. However, the claim to enable Mr. Uy to remain in a residential setting beyond when Mr. and Mrs. Amurao are able to care for him lacks an evidentiary foundation.
[72] As reflected in the passage from Mr. Uy’s written submission, the idea that one of the Amurao children will in the future assume the care and custody of Mr. Amurao is little more than a speculative hope. The same is true for Mr. Uy’s daughter, from whom he is largely estranged. There was no evidence at trial that would permit the Court to conclude that either scenario is likely, or even possible. Further, it is apparent on the evidence that the care and support that Mr. Uy receives in his current living arrangement is due to the efforts of Mr. and Mrs. Amurao specifically, and it is with them that Mr. Uy is most closely connected.
[73] The reality is that this arrangement will not last forever. Mr. Amurao is 62 years old and Mrs. Amurao is 58 years old. Both have health issues. Mr. Amurao has been off work for some time on disability due to a workplace injury. Mr. Amurao’s age and health are particularly relevant as it is clear that he does most of the “hands on” work with Mr. Uy.
[74] It is also relevant that Mr. and Mrs. Amurao have at times felt the effects of caregiver burnout and have considered putting Mr. Uy in an institution. Ms. Szarkiewicz assumed for the purposes of her first report that Mr. Uy would transition into an institutional setting. While the Amuraos subsequently had a change of heart, this history suggests that Mr. Uy’s situation with the Amuraos is challenging and will only get more so as they all age, even with the provision of outside support.
[75] In a supplemental report dated July 3, 2020, Mr. Carson provided present day calculations for Mr. Uy’s future care costs under different scenarios whereby Mr. Uy remains in the Amuraos’ home for 15 years or 20 years before transitioning to an institution, as well as a cost scenario assuming Mr. Uy remains in the Amuraos’ home, or a similar setting, for the rest of his life.
[76] In my view, the 15 year scenario is the most realistic. By that time, Mr. Amurao will be 77 years old. It is simply not realistic to assume that Mr. and Mrs. Amurao will continue to be able to house and care for Mr. Uy into their 80s. Further, as discussed above, the evidence does not support any realistic possibility that one of the Amuraos’ children or Mr. Uy’s daughter will take over from the Amuraos.
[77] Ms. Szarkiewicz considered three possible supported living agencies for if and when Mr. Uy leaves the Amuraos’ home: ABIS Residential Supported Living operated by the Fraser Health Authority, Cheshire Homes Society of BC-Langley Programs, and Connect Communities. The first two involve public funding to some degree whereas Connect Communities is a private facility. Since Ms. Szarkiewicz prepared her first report, the liability of the defendants was determined and, as a result, no public funding is available for Mr. Uy’s care. As such, the only viable option identified by Ms. Szarkiewicz is Connect Communities. The cost of the facility depends upon the level of care and Ms. Szarkiewicz estimates the annual cost to be in the range of $109,500 to $164,250. Given Mr. Uy’s requirement for 24-hour care and the possibility that he may further deteriorate, it is reasonable to assess the cost using the high end of the range.
[78] As noted, in Table 1-B-15 to his July 3, 2020 report, Mr. Carson provided present day calculations for Mr. Uy’s future care costs for the scenario in which Mr. Uy remains with the Amuraos for 15 years before transitioning to Connect Communities.
[79] Included in his calculations, Mr. Carson makes adjustments in keeping with the total lifestyle approach to assessing damages. Specifically, in addition to calculating the cost of 24-hour care, he includes amounts to cover the basic necessities of life. In his June 25, 2020 memo to Mr. Uy’s counsel, he describes how he has used Statistics Canada’s poverty line amount of $24,830 annually to reflect what it would cost to provide Mr. Uy with those necessities (i.e. accommodation, food, etc.). When Mr. Uy transitions to Connected Communities, Mr. Carson assumes that basic costs of accommodation, food and other household costs will be covered in the institutional cost, thus he reduces the annual cost for remaining basic necessities to $7,310. The defendants did not take issue with these calculations.
[80] Mr. Carson therefore calculates the cost of 24-hour care for Mr. Uy, while he remains in the Amuraos’ home (for 15 years), as $4,973,336, comprising $4,437,064 in care costs, $221,853 in applicable taxes and $314,419 for basic necessities.
[81] For the period when Mr. Uy transitions to institutional care (after 15 years), the total costs calculated by Mr. Carson are $2,158,629, comprising $2,066,652 for the institutional care costs and $91,977 for basic necessities.
[82] The care component for 24-hour care aide support for 15 years followed by institutional care for the balance of Mr. Uy’s life therefore totals $7,131,965.
[83] I note that in providing his present value calculations, Mr. Carson used a statistically normal life span for Mr. Uy. The defendants submit that some allowance should be made for a reduced life expectancy. They rely on Dr. Travlos’s evidence during cross-examination that Mr. Uy’s life expectancy, based solely on the general fact that his had suffered a brain injury, may be reduced by two to four years. However, Dr. Travlos was speaking in general terms and there is no direct evidence that Mr. Uy’s life expectancy should be shortened. I therefore decline to make the adjustment sought by the defendants.
[84] The defendants do not take issue with Ms. Szarkiewicz’s recommendations for occupational therapy, rehabilitation assistance, kinesiology, physiotherapy, health and strength maintenance, home safety accessories, transportation and medication. The present value of these costs are set out in Mr. Carson’s Table 1-B-15, inclusive of taxes where applicable:
-
- a) Occupational Therapy/Case Management $23,069
- b) Rehab Assistant/Kinesiologist $8,639
- c) Physiotherapy $4,770
- d) Home Safety Accessories $21,595
- e) Health and Strength Maintenance $13,041
- f) Transportation (HandiDART) $11,618
- g) Medication $20,825
[85] Mr. Carson’s Table1-B-15 includes references to recommended follow up and care with Mr. Uy’s family doctor and possibly by a psychiatrist. However, as these are publically funded services, there is no cost included.
[86] The table also includes items for psychological counselling and for sexual health counselling. With respect to the latter, Ms. Szarkiewicz recommended certain services to assist Mr. Uy, but he is no longer pursuing that claim. With respect to psychological counselling, I agree with the defendants that there is no recommendation for Mr. Uy to obtain counselling at this time and that any future services could likely be obtained through the public system.
[87] Taking account of the above, I award damages for the cost of future care in the total amount of $7,235,522.
[88] Mr. Uy seeks an additional 10% contingency on the basis that Ms. Szarkiewicz’s report provides conservative estimates for services. He submits that additional services and related costs may be required if his condition deteriorates.
[89] In my view, this contingency is well accounted for in the fact that the future care award is based upon the high end of the cost ranges provided by Ms. Szarkiewicz and the fact that no reduction was made for the potential negative contingency of a reduced life expectancy. I decline to add an additional 10%.
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